Appeal from a declaratory judgment and an order granting a permanent injunction entered by the Circuit Court for Dane County: Richard W. Bardwell, Judge. On by-pass from Court of Appeals.
Motion for Reconsideration Denied, without Costs, June 1, 1983.
William G. Callow, J. Heffernan, J. (minority OPINION(S)ing). Shirley S. Abrahamson, J. (minority OPINION(S)ing). Chief Justice Bruce Beilfuss joins in this Dissent.
The opinion of the court was delivered by: Callow
This is an appeal from a Dane county circuit court declaratory judgment and order granting a permanent injunction. The circuit court declared the Town of Fitchburg's incorporation Resolution No. 5-81 and the results of its April 7, 1981, referendum null and void and enjoined Fitchburg from certifying the referendum results to the Wisconsin Secretary of State. Fitchburg appealed and petitioned to bypass the court of appeals pursuant to sec. 808.05 and sec. (Rule) 809.60, Stats. We granted the petition to bypass.
On March 24, 1980, a petition requesting an incorporation referendum for Fitchburg under sec. 60.81, Stats., was filed with the Fitchburg Town Clerk. The petition was signed by 2,167 persons who owned real estate in Fitchburg. On March 31, 1980, the Fitchburg Town Board adopted Resolution No. 9-80 which scheduled a sec. 60.81 incorporation referendum for June 3, 1980. The resolution established notice procedures and set forth wards and boundaries for the proposed city. *fn1 The city of Madison (Madison) sued to enjoin the referendum. The circuit court granted the injunction. Ultimately, however, this court vacated the injunction, holding that the trial court lacked personal jurisdiction over Fitchburg. In re Incorporation of Town of Fitchburg, 98 Wis. 2d 635, 299 N.W.2d 199 (1980).
Subsequently, the Fitchburg Town Board passed Resolution No. 5-81 which rescheduled the sec. 60.81, Stats., referendum for April 7, 1981. *fn2 Madison and Russell Mueller then brought this action to invalidate the resolution and enjoin the referendum. On April 2, 1981, the circuit court denied the plaintiffs' motion for a temporary injunction. The court further ordered, however, that if the majority of votes cast were in favor of incorporation, the town clerk was enjoined from certifying the referendum results to the Wisconsin Secretary of State until it had been finally determined whether sec. 60.81 validly applied to Fitchburg. The referendum was held as scheduled on April 7, 1981. The Fitchburg residents voted by a margin of 1,637 to 304 to incorporate as a city.
Following the referendum, the merits of the case were put before the circuit court on motions for summary judgment brought by both sides. The circuit court held that Madison has standing to maintain this action but did not reach the question of Russell Mueller's standing. The court further held that Fitchburg could not use sec. 60.81, Stats., to incorporate because it is not "'adjacent to a city of the first class.'" On May 21, 1982, the court entered a declaratory judgment and order which invalidated Resolution No. 5-81 and the referendum results and permanently enjoined Fitchburg from certifying the referendum results to the Wisconsin Secretary of State. Fitchburg appealed.
There are two issues presented on this appeal: (1) whether Madison and Russell Mueller have standing to maintain this action for declaratory judgment, and (2) whether the incorporation procedures set forth in sec. 60.81, Stats., are available to the residents of Fitchburg.
In order to properly maintain a declaratory judgment action, "'here must exist a justiciable controversy -- that is to say:
"'(1) A controversy in which a claim of right is asserted against one who has an interest in contesting it.
"'(2) The controversy must be between persons whose interests are adverse.
"'(3) The party seeking declaratory relief must have a legal interest in the controversy -- that is to say, a legally protectible interest.
"'(4) The issue involved in the controversy must be ripe for judicial determination.'" Loy v. Bunderson, 107 Wis. 2d 400, 410, 320 N.W.2d 175 (1982); Klaus v. Vander Heyden, 106 Wis. 2d 353, 364, 316 N.W.2d 664 (1982); State ex rel. La Follette v. Dammann, 220 Wis. 17, 22, 264 N.W. 627 (1936).
It is the third component of justiciability which is at issue in this case. The legal interest requirement has often been expressed in terms of standing. Tooley v. O'Connell, 77 Wis. 2d 422, 438, 253 N.W.2d 335 (1977). In order to have standing to sue, a party must have a personal stake in the outcome of the controversy. Mast v. Olsen, 89 Wis. 2d 12, 16, 278 N.W.2d 205 (1979); Tri-State Home Improvement Co., Inc. v. Labor & Industry Review Commission, 111 Wis. 2d 103, 113, 330 N.W.2d 186 (1983); Moedern v. McGinnis, 70 Wis. 2d 1056, 1064, 236 N.W.2d 240 (1975).
Fitchburg challenges Madison's standing on the ground that it does not have a legal interest in the sec. 60.81, Stats., incorporation proceeding. Unlike Chapter 66, *fn3 sec. 60.81 does not specifically grant standing to neighboring municipalities. According to Fitchburg, this court has previously decided that without such a standing provision a city cannot ...